Osgoode Program Addresses Technological and Procedural Challenges in E-discovery

If you want to work in e-discovery, you need to get comfortable with change. And Susan Wortzman has seen plenty.

Wortzman, the co-program director for the Osgoode Certificate in E-Discovery, Information Governance and Privacy, got her first taste of the field in the early 1990s as a freshly called commercial litigator working on large mining and product liability files.

“Initially, it was about using what limited technology was available to streamline the process. Really, it was a function borne of necessity, because I was a junior working on large cases and I didn’t want to carry three big boxes back and forth from the courthouse every day,” she says. “It’s evolved to where we are using machine learning and generative AI and have a massive toolkit that helps us manage terabytes of data. Instead of figuring out how to scan a pile of documents, we’re analyzing 50 terabytes of data to find what we’re looking for as quickly as possible.”

In between, Wortzman founded her own firm, which was eventually acquired by McCarthy Tétrault LLP in 2016 and rebranded as its MT>3 Division, supporting the firm’s litigation, competition law, tax, business law and real property groups with their document review, due diligence and data analysis needs. She is currently the President of MT>3 and a partner at McCarthys.

Wortzman’s co-program director Gordon Lee – a vice president at MT>3 – found his home in e-discovery after making his own pivot from a litigation practice around 15 years ago.

“I’m truly tech-savvy for a lawyer, especially compared to lawyers who are not into technology,” says Lee, who pinpoints the Covid-19 pandemic as a watershed moment for his field.

“We saw a proliferation of new data types with the shift to remote work, as people started using Zoom, Microsoft Teams and chat apps for their work,” he says.

Since then, the changes have continued to flow, thicker and faster than ever.

“There’s been an explosion in both the volume and types of data and e-discovery is the legal world’s way to respond and keep up with those data challenges,” Lee adds.

Since its first edition almost a decade ago, the e-discovery certificate has itself been adapted to meet the changing needs of professionals operating in the field. In its current iteration, the program is made up of four full-day modules, proceeding online over several weeks in April and May. 

“A lot of people in their practice will focus primarily on e-discovery, privacy or cybersecurity, but there is a great deal of overlap between these areas,” Wortzman says. “What’s really valuable about this program is the way that it ties all these pieces together so that legal professionals can build a good knowledge base across all of these subjects.”

Reflecting the breakneck speed of developments in the field, AI features heavily in this year’s program. While many legal professionals were originally skeptical of integrating AI processes into their e-discovery practices, Wortzman says that shifting attitudes among clients mean avoidance is no longer an option.

“Two years ago, clients were all saying not to use AI because they were nervous about hallucinations and accuracy of the tools. Now the message is: ‘we expect you to use AI,’” Wortzman says. “Clients are very, very interested in it, so lawyers need to figure it out and be able to respond to their questions.”

She says the certificate program should be attractive to an extremely broad range of lawyers and other e-discovery professionals working in private practice, government or in-house roles.

“Lawyers may not be technologists, but it’s important for them to be able to understand these tools, because we all need to be using them. Legal professionals must have a basic understanding of what AI tools and functionality are available,” she says. “Whatever you’re using – whether it’s building AI models, AI classifiers, supervised learning, active learning, machine learning or generative AI – you have to make sure you’re adopting a process that is defensible.”

Still, technological advances are not the only changes that legal professionals have to worry about when it comes to e-discovery. To further complicate matters, Ontario is in the midst of a sweeping reform of the province’s Rules of Civil Procedure that looks set to largely eliminate oral discoveries while encouraging earlier exchanges of information and documents between parties.

“These reforms are going to cause significant changes in how people strategize their e-discovery and the industry is still trying to figure it out,” Lee says. “That will bring a lot of challenges, but also a lot of opportunities. If you’re just getting into e-discovery or looking to enhance your knowledge of the process, now is a great time to enrol in a program like ours.”

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